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Archive for September, 2019

Conspiracy law, class and society Part 3

The second half of the nineteenth-century saw the struggle for Irish independence manifested in Fenianism, a movement which originated with the Irish Republican Brotherhood, a secret society formed by Irish emigres in the United States. Membership of the Brotherhood involved taking an oath to overthrow the English government of Ireland by violent means. It thus amounted, in itself, to a criminal conspiracy without any action being taken in furtherance of the oath. Not surprisingly, the judges held that ‘the Fenian conspiracy’ was itself a criminal association, and often the only question for juries was whether the accused had expressed support for the movement’s aims. By 1867, there were estimated to be 80,000 Fenians supported by numbers of Irish American officers who had fought in the American Civil War.
In March 1867, the Fenian-inspired Dublin rebellion led to twelve deaths and a number of conspiracy trials, including that of McCafferty which marked a clear extension of the law. McCafferty was charged with treason, and in particular with levying war and attempting to depose the queen. It was proved that he had been a member of the Directory of the Fenian conspiracy which had organised the rebellion during February 1867. McCafferty was arrested 23 February. Two weeks later the Fenians rose up in Dublin, allegedly as a direct result of the Directory’s plans. Mr Justice George held that McCafferty’s responsibility for the acts of the rebels did not cease on his arrest, since the Dublin insurrection was a substantive act done in furtherance of the conspiracy, in pursuance of commands given by the accused or by others for whom he was responsible. Evidence of the events of 5 March (the date of the uprising) was admissible against him. The case is stated by the 1979 edition of Archbold to be an example of the rule that the acts and declarations of any of the alleged conspirators done in furtherance of their common design may be given in evidence against any other conspirator.
The international nature of Fenianism was illustrated by the trial of Meany who was charged with treason felony. Some of the allegedly treasonable acts supporting the indictment were conspiracies against the king. Although the venue of the offence was Dublin, where the trial took place, no act of conspiracy was alleged within the venue: the Crown accepted that Meany had been in the United States at all relevant times. Evidence was given of the Fenian uprising in Dublin and of Meany’s supportive activities in America. Mr Justice Fitzgerald held that Meany was responsible for the acts of his co-conspirators – their acts were his, because they were in law his agents, and this satisfied the common law rule that an offence must be proved where the venue is laid.
The acts of conspiracy in the county and city of Dublin [said his lordship] are to be treated as the acts of the defendants; though his imagining was abroad, yet when he acts by his brother conspirators in the county, the moment he becomes amenable he may be tried, and I cannot think the defendant’s presence in the county necessary.
In legal terms, perhaps the most significant of the Fenian cases is Mulcahy, still cited by Archbold as a leading authority on the definition of conspiracy. Mulcahy and nineteen others were convicted of treason felony, having compassed to depose the queen by conspiring to make war and to aid the objects of the Fenian conspiracy. Mr Justice Willes confirmed that a conspiracy was an overt act of treason, explaining that the numbers of persons involved caused danger to the state:
…it seems a reduction to absurdity that procuring a single stand of arms should be a sufficient overt act to make the disloyal design indictable, and that conspiring with a thousand men to enlist should not.
Further:
A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more, to do an unlawful act or to do a lawful act by unlawful means. When two agree to carry it into effect, the very plot is an act in itself, and the acts f each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful, punishable if for a criminal object or the use of criminal means. And so far as proof goes, conspiracy is generally a matter of inference…
This definition, based on the Hawkins doctrine, helped to give authenticity to Hawkins’ views and remains essentially accurate as a statement of the law despite the limited reforms of the Criminal Law Act 1977. Cases like Mulcahy, concerned with treason felony rather than conspiracy, in which members of political organisations were prosecuted against a background of violent revolution, gave substance to vague common law doctrines which were eventually to gain acceptance and citation in successive editions of criminal law textbooks.
The Treason Felony Act was taken a stage further in Davitt and Wilson where it was held that supplying arms to the Fenians was a sufficient overt act of conspiracy for liability under the Act. Davitt was sentenced to fifteen years of imprisonment: after his release he founded the Irish National Land League, of which Parnell was to become President.
The last of the great Fenian trials was that of Deasy who, with five others, was charged with conspiracy to levy war against the Queen, to subvert and destroy the constitution and government of the United Kingdom, and to blow up ‘divers public buildings unknown’. The basis of the case against Deasy was that he had been found in possession of bomb-making materials and letters which linked him with two of the co-accused. A search of their lodgings unearthed firearms and explosive substances. Dalton, the fourth accused, had been seen taking notes outside the Houses of Parliament and had been in possession of documents linking him with the Fenians. All were convicted and imprisoned for life. The four-fold nature of the prosecution’s case – evidence of political beliefs, association, literature and explosive substances – reveals a pattern which has been repeated in a number of modern conspiracy trials with political overtones, most notably that of the Angry Brigade.
Later in the nineteenth-century, Charles Parnell MP assumed the leadership of the nationalist movement through the Irish National Land League, which aimed to improve the condition of rural tenants by reforming the land tenure system. In 1881 Parnell and four other leaders of the League were charged with conspiracy for their activities in persuading tenants to refuse to pay rent and to retake possession of their land by force if they were evicted. The jury refused to convict, but during the trial certain statements were made by the Bench which are still referred to by Archbold. Mr Justice Barry pointed out that there must be in conspiracy ‘considerable vagueness and uncertainty, which in many respects is contrary to our law, and I agree that it should be administered with very great care.’
Mr Justice Fitzgerald, having accepted the political nature of the trial and the function of conspiracy as a ‘catch-all’ offence, said that conspiracy was divisible into three heads. First, an agreement to obtain an end criminal in itself; second, to obtain a lawful object by unlawful means; and, third, a plot to injure some third party or class, although the wrong if inflicted by a single individual would not be a crime. His lordship also recalled
…a remarkable case at Cork, as singular and remarkable case as I ever met with. It was a case in which two persons had been connected with the American service in the late (civil war0. One was a captain of cavalry in the southern side, and the other a captain on the northern side. One was a native of this country, the other a native born of America. They had been opposed to each other during the war: they had never seen each other. They had been arrested when they arrived at Queenstown. The one had come to take command of a brigade of Fenian cavalry, and had brought with him as his whole equipment a saddle, a pair of spurs and two long pistols. The other was returning to Ireland but he was alleged to be a party to the Fenian conspiracy. They were put upon trial in the same dock, upon the same indictment, and the first time they saw each other was when they stood face to face in the dock. I mention this case as illustrating that the charge of conspiracy may be well-founded even though the parties never saw each other.


Conspiracy law, class and society Part 2

Nineteenth-Century Cases
An early example is Forbes. This involved a plot, not to overthrow the government or to cause an insurrection, but to insult the Duke of Wellington. The defendants were charged with conspiring to riotously assemble at the Theatre Royal, Dublin, and to hiss, insult and assault the Marquis of Wellesley, Lord Lieutenant of Ireland. Allegedly, the accused did then and there ‘with force of arms throw, fling and cast at the said Lord Lieutenant…divers pieces of wood and copper and divers glass bottles.’ The Attorney-General, prosecuting, devoted most of his talents to keeping the case from being laughed out of court. He stressed that the case was vital to the political interests of Ireland: ‘I should blush for our country, were it necessary to state that a deliberate insult to the King’s representative…is no light or trivial offence.’ His argument did not convince the jury, who failed to agree on a verdict. The accused were discharged.
In 1800 the Act of Union, passed by the English Parliament, had unified the legislatures of Ireland and England by abolishing the Irish Parliament and providing for Irish parliamentary representation at Westminster. During the first half of the nineteenth-century, the central demand of Irish nationalists was the repeal of this statute. The Repeal Party was led by Daniel O’Connell, a middle-class lawyer who had, in 1835, been offered the post of Master of the Rolls in Ireland. By 1843, with the rapid growth of his party as economic conditions worsened, his public meetings were banned and he was charged with seditious conspiracy.
The indictment against O’Connell and five of his followers was written on a roll of paper one hundred yards long. It alleged a multitude of conspiracies to do seditious acts. The bulk of the Crown’s evidence consisted of extracts from meetings, speeches and newspaper articles – a pattern which was to occur throughout the nineteenth-century and right up to the present day. In summing up, Chief Justice Tindal told the jury that the accused need not have done any act – ‘…the gist of the offence is the bare engagement and association to break the law.’
In legal terms, the significance of O’Connell’s trial was that another authority was added to the list of precedents, still cited in Archbold, supporting the rule that liability for conspiracy may be founded merely on proof that the accused entered into an agreement, even though the object of the agreement was never carried out. In political terms, O’Connell’s conviction and imprisonment meant the end of the Repeal Party as an effective force.
During 1846 and 1847, the Irish potato crop failed. The resulting famine caused immense social and economic changes. Almost half a million people are estimated to have died of starvation and disease: two million emigrated and the number of agricultural smallholders decreased by fifty percent. Against this background, a new revolutionary group – the Young Ireland movement – organised Irish Nationalists into a system of ‘confederate clubs’. The Young Irelanders were essentially propagandists who developed a romantic view of Irish cultural nationalism through their newspapers. There is evidence that they cooperated with the Chartists on the English mainland, a phenomenon described by E.P. Thompson as ‘the confluence of sophisticated political radicalism with a more primitive and excitable revolutionism.’
The movement’s leaders travelled to revolutionary Paris where they prepared for the ‘cabbage-garden revolution’ – an abortive rising at Kilkenny where a provisional government was declared. The English government reacted by suspending habeas corpus and by passing the Treason Felony Act. O’Brien and Meagher, two leading Young Irelanders, were convicted and transported in the first treason felony trial. O’Doherty, proprietor of the Irish Tribune, was indicted for treason felony and tried three times for compassing to depose the queen through his newspaper. The first two juries disagreed: the third convicted and he was transported for ten years.


Conspiracy law, class and society Part 1

Conspiracy Law, Class and Society Part 1
Treason, Treason Felony and Sedition
Nineteenth-century Irish conspiracy cases cannot be considered in isolation from treason, treason felony and sedition. These three offences, classified by current authors as ‘Offences against the State’ or ‘Offences against the Crown and Government’, form the kernel of English political law and, despite their lack of use during the twentieth-century, are the heavy artillery of the penal system. By their very nature they stand against the arguments of those who assert that England has no political offences. In the context of nineteenth-century Ireland, conspiracies against the State were held to amount to overt acts of treason or sedition, and the development of conspiracy law was closely connected with the changing role of these substantive crimes.
i. Treason
Treason, as breach of allegiance to the overlord, was the most serious crime known to the feudal system. In 1351 the Statute of Treasons provided that the common law of treason comprised, inter alia, compassing or imagining (i.e. planning) the death of the sovereign and being adherent to the king’s enemies within the realm. It was held by the courts at an early date that such compassing or imagining must be proved by some ‘overt act’ and that what sort of conduct amounted to an overt act was a question of law for the judges to decide. During the disturbances of the nineteenth-century, both in Ireland and on the mainland, the courts treated the activities of radical movements as treasonable conspiracies. Many of the conspiracy cases cited in Archbold, the leading criminal law and procedure textbook, were decided on the issue of whether the alleged combination was an overt act for the purposes of treason. The crucial significance of this, certainly from the prisoners’ point of view, was that the penalty for treason was, and remains, death. The offence is now almost obsolete – the last trial was that of Joyce – but it remains available to prosecutors who are from time to time urged by politicians to resurrect it.
ii. Treason Felony
Treason Felony originated in 1848 with the Treason Felony Act, passed because ‘the disturbances consequent upon the Continental revolutions of that year were considered to require new legislation.’ The Statute attempted to codify five hundred years of judicial interpretation of the Statute of Treasons. It did not set out to abolish treason itself, but it did provide an alternative to a charge which, if proved, inevitably led to a death sentence – a result which could make juries reluctant to convict. The 1848 Act made unlawful all deliberate expression, by overt act, of an intention to depose of the king, incite invasion of the realm, levy war against the king, or constrain either House of Parliament to change its policy. As with treason, conspiracy was held to be a sufficient ‘overt act’: a bare agreement to commit a treasonable act amounted to treason felony.
iii. Sedition
In 1883 Stephen wrote:
The application of conspiracy to political and especially seditious offences is comparatively modern…it is difficult to say precisely at what period the use of organised voluntary associations for the purpose of attaining political objects first became a marked feature of English life, it is certain that it received a great accession of importance, to say the least, when associations began to be formed for the purpose of procuring changes in the constitution of Parliament and other institutions of the country by constitutional means…in the present day the law as to seditious conspiracy is of greater practical importance than the law of seditious libel. Political combinations are so common, and may become so powerful, that it seems necessary that a serious counterpoise should be provided to the exorbitant influence which in particular circumstances they are capable of exercising.
Sedition is a common law misdemeanour which has never been defined. Essentially, the offence is the publication of words with a seditious intention. The courts have interpreted ‘seditious intention’ to include an intention to excite discontent or dissatisfaction, to excite ill-will between different classes of the sovereign’s subjects, to create public disturbance or civil war, to bring into hatred or contempt the sovereign or government, or the laws or constitution of the realm, to incite unlawful associations or assemblies, insurrections or breaches of the peace, or to use any for of physical force in any public matter connected with the state. The extreme vagueness, coupled with the elasticity of conspiracy charges, indeed provided a ‘serious counterpoise’, as Stephen states, to developing Irish nationalist groups.


Workplace stress: the legal essentials; Part 10

Workplace Stress Part 10
Reasonable foreseeability
Reasonable conduct by employer
Ramwell v Tesco Stores plc (2000) HSB 289: 23, Manchester county court
R was employed by Tesco as a checkout controller. In 1992, as the result of a restructuring exercise, she was demoted and a new manager was appointed to supervise her. This caused her to suffer from nervous exhaustion and in 1994 she took early ill-health retirement. R had serious domestic and personal problems. Tesco was unaware of this. She claimed compensation from Tesco, alleging that:
• Tesco had been negligent
• It had breached her contract of employment by failing to provide her with a safe system of employment
• It should have provided her with better occupational healthcare
• The new manager had made her life a complete misery.
The decision of the county court was as follows:
• The claim should be dismissed
• The judge accepted Tesco’s evidence that R would have found fault with anyone who was appointed as a new manager
• Tesco had known of R’s grievances and had done everything which it could reasonably do to help
• Tesco could not have reasonably foreseen that R would develop a psychiatric illness as a result of her problems at work. It was unaware of her personal problems
• Tesco had displayed reasonable conduct in dealing with R over the restructuring. Its managers were reasonable, sympathetic and tolerant throughout.
Foreseeability
Excessive workload
Mather v British Telecommunications plc (2001) SLT 325, Scottish Outer House
M claimed that she had suffered injury to her mental health because of stress at work. She claimed that her employers were both directly liable and vicariously liable for the acts of her manager. M was unable to work after April 4, 1994, and resigned on September 23, 1994. She started proceedings on August 25, 1997. The claim included allegations that she had been subjected to substantial pressure at work relating to organisational changes. She and colleagues had repeatedly complained of an excessive workload, lack of training in a new administrative system and technology, and hostility and harassment by her manager. She had consulted the employers’ welfare officer early in 1994. Her employers ought to have known that setting impossible deadlines and failing to provide adequate training and support would lead to stress levels which could result in injury. They knew that she suffered from insomnia. She also claimed that the way in which she had been treated after April 5 had materially contributed to her injury.
On behalf of the employers it was argued that the action was time-barred.
The Scottish court ruled that it could not be said in advance of inquiry that M’s injuries had all been sustained by April 4. There was material which could found a foreseeable risk of injury of a psychiatric nature.
Foreseeability
Remote risk
Gillespie v The Commonwealth of Australia (1991) 105 FLR 196, Australian Federal Court
G, an administrative officer employed by an Australian government department, was posted to Venezuela. He contracted an anxiety state and resigned on grounds of ill-health.
G sought compensation from his employers for breach of contract and negligence. He claimed that his mental illness had been caused by the employers’ failure to warn him about conditions in Venezuela and failure to protect him from those conditions.
The question for the court was whether G’s illness should have been foreseen, and if so, whether reasonable steps were taken to minimise or avoid the risk of illness. The following factors were considered:
• G had requested a posting to Venezuela
• He had been assessed as in good health and with an ability to adjust
• The environment in Venezuela was aggressive, strange and hostile.
At first instance, the judge found as follows:
• G had not shown that there were steps which his employers should reasonably have taken to prevent risk of injury
• It had not been foreseeable that G was particularly vulnerable to psychiatric damage
• Although it was foreseeable that a person working in a strange and hostile environment was at risk of a mental breakdown, that risk was remote
• Additional information about conditions in Venezuela would not have deterred G from taking up the position or usefully prepared him
• His employers did not know that G was psychologically vulnerable
• G’s claim failed.
On appeal, the appeal was dismissed. The judge’s findings were upheld.